Waldlaw Blog

Monday, October 01, 2012

New California Assisted Reproduction Bills Signed Into Law!

In the past week, Governor Brown has signed two separate assisted reproduction bills into law.  The first, AB 1217, addresses surrogacy arrangements; and the second, AB 2356, addresses testing requirements for sperm donation.

AB 1217 provides guidance, for the first time in California history, on what information needs to be included in the written agreement governing a gestational surrogacy arrangement.  It is pretty straightforward, but does include a few things that may not be standard to all surrogacy facilitation programs and attorneys.  For example, the bill provides that the signatures of all parties to the surrogacy agreement must be notarized.  In addition, it provides that the surrogate is not to start on cycle medications until the agreement has been fully executed.

Useful to ART attorneys as well as the families we serve, the bill sets out some specific rules for surrogacy parentage actions.  Under this new law, a surrogacy action can be filed pre-birth and can be filed in the county where the child is expected to be born, in the county where the surrogate lives, in the county where the intended parents live, in the county where the surrogacy agreement was executed, or in the county where the surrogacy medical procedures are to be performed.  It will be great to have all these options, as some counties are far more efficient than others in processing these uncontested court cases! 

Most importantly, from my perspective, the bill clarifies that a surrogate and the intended parent or parents "shall be represented by separate independent licensed attorneys of their own choosing."  I have long taken issue with some surrogacy facilitators who either take the position that surrogates do not need to have their own attorneys, or who require the parties to work with attorneys of the facilitator's choosing (as opposed to of the parties' choosing).  It is wonderful for agencies to provide surrogates and intended parents with the names of qualified counsel, but ultimately every client has a right to choose their own attorney under State Bar rules.  It will be useful to have this in print, as actual law.

While leaving much of the details to attorneys, agencies and clinics -- as well as to the women and men actually engaging in surrogacy -- this bill helps set some basic ground rules for surrogacy endeavors in California, and as such should be quite helpful.

The second bill, AB 2356, addresses an inequity in sperm donor testing requirements.  The Food & Drug Administration (FDA) currently requires that sperm donors undergo rigorous testing, which must be completed within 7 days of any proposed sperm donation.  However, there is an exception to this rule if the sperm donor is a "sexually intimate partner" of the recipient -- in which case, the testing requirements are far less rigorous, and therefore also far less expensive.  The phrase "sexually intimate partner" is not defined anywhere in the FDA regulations.

The presumed (and clearly legitimate) purpose of the FDA's testing requirements is to assure that medical facilities are not exposing women to a donor's sperm unless there is assurance that either (a) the sperm is disease free, and/or (b) the woman has already voluntarily exposed herself to the sperm in a non-medical setting, in which case medical insemination will pose no additional risk to her health.  However, the "sexually intimate partner" language was being interpreted by most medical providers to mean that the woman and the donor needed to have actually had sex before the more stringent testing requirements could be waived -- which, frankly, does not seem like any of the FDA's business.  So California has now statutorily defined the phrase "sexually intimate partner" to refer to "a donor to whose sperm the recipient has previously been exposed in a nonmedical setting in an attempt to conceive."  This definition will allow single women and lesbian couples who are attempting pregnancy with the help of known sperm donors to access fertility assistance as necessary without incurring the major expense of having their donors retested every cycle, as long as the women have tried to conceive at home at least once (thereby "exposing themselves to the donor's sperm in a nonmedical setting in an attempt to conceive").

It wasn't many years ago that there was absolutely no guidance available in the California Family Code on issues of assisted reproduction.  Both of these new bills should help clarify issues of concern to people involved in assisted reproduction; and both bills also once again put California in the forefront of national efforts to make sure that assisted reproduction is handled both safely and ethically.


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